Masterfile vs. Chaga: Memorandum of Law in Support for Summary Judgment as to Liability

8/2/2019 Masterfile vs. Chaga: Memorandum of Law in Support for Summary Judgment as to Liability

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TABLE OF CONTENTS

Table of Authorities . 2

Preliminary Statement .... 3

Statement of the Case .. 4

Standard of Review .. 9

Argument . 10

I. DEFENDANTS ARE ENTITELD TO SUMMARY JUDGMENT OVER PLAINTIFF'S CLAIMS

BECAUSE THE REGISTRATIONS UPON WHICH PLAINTIFF RELIES DO NOT COMPLY

WITH 17 U.S.C. 409 AND 411 AND THEREFORE CANNOT SERVE AS VALID

REGISTRATIONS OF THE INDIVIDUAL IMAGES AT ISSUE

. 10

II. EVERY COURT BUT ONE THAT HAS EVALUATED THIS ISSUE HAS INVALIDATED

THIS REGISTRATION FORMAT AND THE COMPLAINTS HAVE BEEN DISMISSED

17

III. SECTION 103 OF THE COPYRIGHT ACT SPECIFICALLY STATES THAT REGISTRATION

OF A COMPILATION DOES NOT PROVIDE REGISTRATION TO THE INDIVUDAL WORKS

CONTAINED IN THE COMPILATION

. 22

Conclusion 23

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TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)........................................................8Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co. 2010 WL 378572 (D.Alaska,

2010)...................................................................................................................................16Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)..................................................8Bean v. Houghton Mifflin Harcourt Publishing Co., 2010 WL 3168624 (D.Ariz.,2010)...16Boyds Collection, Ltd. v. Bearington Collection, Inc., 360 F. Supp. 2d 655, 662(M.D. Pa.

2005)...................................................................................................................................13Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996) 8Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984).............12Christensen v. Harris County , 529 U.S. 576, 588 (2000)......................................................13Gray v. Garlok Seealing Technologies, LLC, 2006 WL 3680567

(W.D.N.Y.,2006)..................................................................................................................9Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)................................................8

Masterfile Corp. v. Gale, 2011 WL 4702862 (D. Utah 2011)..............................................16Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., 712 F.Supp.2d 84

(S.D.N.Y.,2010);..................................................................................................................9Reed Elsevier, Inc. v. Muchnick ___ U.S.____, 130 S.Ct. 1237 U.S., (2010).......................9U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).....................................................................8United States v. Mead Corp., 533 U.S. 218, 227-8 (2001)...................................................12

Statutes. Fed.R.Civ.P. 56(c)................................................................................................................817 U.S.C. 409(1), (2), (6)......................................................................................................917 U.S.C. 409......................................................................................................................1017 U.S.C. 411(a)....................................................................................................................917 U.S.C. 103(a)..................................................................................................................2117 U.S.C. 408......................................................................................................................14

Other AuthoritiesH.R. Rep. No. 94-1476, at 154, 1976 U.S.C.C.A.N. 5659, 5770.........................................14H.R. Rep. No. 94-1476, at 155-56 (1976).............................................................................13

Treatises11 MOORE'S FEDERAL PRACTICE, 56.11[1] [a] (Matthew Bender 3d ed.).................8

Regulations37 C.F.R. 202.3(10)(ii)........................................................................................................16

43 Fed. Reg. 965, 966-67 (January 5, 1978).........................................................................1466 Fed. Reg. 37142, 37142-50 (July 17, 2001).....................................................................15

PRELIMINARY STATEMENT

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Defendants Chaga International, Steve Gould and Michael Tidd (collectively,

Defendants) respectfully submit this Memorandum of Law in Support of Defendants'

Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56.

STATEMENT OF THE CASE

Plaintiff is a stock photo licensing agency based in Toronto, Canada, that licenses

stock digital imagery to users for fees. Complaint at paragraph 2. The complaint alleges

that Defendants used forty (40) digital images on their various websites without permission

or authorization from Plaintiff. Complaintat paragraph 11. In order to establish its right

to pursue this action, Plaintifff relies on approximately eighteen (18) different registrations

which collectively form Exhibit A of the complaint. Exhibit A is actually only part of

the registrations; the full registrations are annexed as Exhibits 2 through 17 of the

Declaration of Oscar Michelen (hereinafter referred to as Declaration), filed in support of

this motion.

The registrations fall into three categories: (1) A registration that lists only

Plaintiff as the author of the images covered by the registration naming no individuals and

listing only and additional authors as additional authors with no actual listing of the

additional authors. Exhibit 17 of the Declaration is the sole registration in this category; (2)

Registrations that list Plaintiff as the author of the images covered by the registration along

with naming three individuals and X others as additional authors without listing the

additional authors where X is the number of alleged additional authors. Exhibits 9

through 16 of the Declaration fall into this category; (3) Registrations that list Plaintiff as

the author of the images covered by the registration along with pages of continuation

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sheets which lists an unnumbered amount of additional authors. Exhibits 2 through 8 of

the Declaration fall into this category.

None of the registrations contain any title for any of the works covered by the

registration. None of the registrations that name an author identify which author is the

author of which particular image nor do they contain any other information about the

author other than the name of the author. The registrations all list one date as the date of

first publication. They do not even appear to contain an image of the actual work of art

being registered.

Section 409 of the Copyright Act sets forth the requirements for a valid

registration of a work. :

The application for copyright registration shall be made on a form prescribed by theRegister of Copyrights and shall include

(1) the name and address of the copyright claimant;

(2) in the case of a work other than an anonymous or pseudonymous work, the name and

nationality or domicile of the author or authors, and, if one or more of the authors is dead,the dates of their deaths;

(3) if the work is anonymous or pseudonymous, the nationality or domicile of the author orauthors;

(4) in the case of a work made for hire, a statement to this effect;

(5) if the copyright claimant is not the author, a brief statement of how the claimantobtained ownership of the copyright;

(6) the title of the work, together with any previous or alternative titles under which thework can be identified;

(7) the year in which creation of the work was completed;

(8) if the work has been published, the date and nation of its first publication;

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(9) in the case of a compilation or derivative work, an identification of any preexistingwork or works that it is based on or incorporates, and a brief, general statement of theadditional material covered by the copyright claim being registered;

(10) in the case of a published work containing material of which copies are required by

section 601 to be manufactured in the United States, the names of the persons ororganizations who performed the processes specified by subsection (c) of section 601 withrespect to that material, and the places where those processes were performed; and

(11) any other information regarded by the Register of Copyrights as bearing upon thepreparation or identification of the work or the existence, ownership, or duration of thecopyright.

The registrations fail to comply with section 409 (2) in that they either fail to name

the author or in the instances where the author is named, they fail to identify the nationality

or domicile of the author. The registrations fail to comply with section 409(6) in that they

fail to name the title of the work. The registrations fail to comply with section 409 (7) in

that they fail to state the year each work was completed. They fail to comply with section

409 (8) in that they fail to state the date and nation of each works first publication.

This method of registration was not chosen by mistake or at random by Plaintiff.

Rather, it was the result of a dialogue between the Copyright Office and Nancy Wolff,

counsel to the Picture Agency Council of America, Inc. (PACA), a photographer trade

association. Declaration at paragraph 49. Materials provided in a similar lawsuitBean v.

McDougal Littell, a division of Houghton Mifflin Harcourt, No. 07 cv 8063 (D. Ariz.) (

Bean), indicate that in the 1990s, representatives of PACA met with representatives of the

Copyright Office to discuss applying registration practices for stock photo databases.

Declaration at Exhibit 20. Specifically, the stock houses proposed registering, under a

single copyright registration, their entire catalogs (and subsequently supplemented

databases) of thousands upon thousands of unrelated digital images taken by hundreds of

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unrelated photographers at various times. (Id.)Seealso, as example, Declaration Exhibit

13(a single registration form for an unknown number of imagesby 134 different authors).

Apparently as a result of those meetings and dialogue, Nanette Petruzzelli, then

Chief of the Examining Division of the Copyright Office, sent a letter to PACAs counsel,

dated February 12, 2002, that stated that the Copyright Office would accept this method of

registration not only for the compilation, but for registration of the individual photographs

themselves.Declaration Exhibit 22. In pertinent part, her letter states:

The registration on record for stock photo catalogs submitted by PACAmembers generally follow this pattern of information: 1. The for-hire author of the

compilation of photographs . . . is listed in space 2A of the form VA. . . .. 2. Space 2b ofthe form lists three individual authors followed by the phrase and X [number] others andthe authorship for such other individual authors is listed as photographs. 3. The claimantof owner of the copyright is usually listed at space 4 of the form VA as the for-hire authorof the compilation authorship. 4. A transfer statement such as by contract, is also listed atspace 4, transfer line.

. . . . Where individuals are listed at space 2a as additional authors the Officeconsiders the claim also to extend to the photographs themselves because assuming that theclaimant [owner of copyright] listed at space 4 is the author of the compilation [usually thestock photo agency] an acceptable transfer statement is also provided in space 4 of the formVA. Thus, the Office interprets the claim to extend to the individual photographicauthorship for which the names indicated as space 2b of the form VA are the responsibleauthors.

Declaration Exhibit 22 at bottom of page 1 to top of page 2. Ms Petruzzelli compares this

type of digital image compilation with the registration for serials (magazines) contained in

Circular 62 of the Copyright Office. Exhibit 18. . Circular 62 states that [t]he

classification serial includes periodicals, newspapers, magazines, bulletins, newsletters,

annuals, journals, proceedings of societies, and other similar works. (Exhibit 18at pg 1).

It does not mention digital image databases.

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The Petruzzelli letter had the effect of converting a registration of a compilation

into a registration of thousands of individual images even though it did not contain most of

the requisite Section 409 information. Many of plaintiffs registrations fail to even comply

with this format in that in only Exhibits 9-16 follow Ms. Petruzzellis instructions.

Ms. Wolff then prepared an article for distribution to PACA members outlining this

methodology.Declaration Exhibit 21. Ms. Wolff then distributed a second article that

reflected that the main impetus behind this circumvention of the plain language of Section

409 was the evasion of the requisite copyright registration fees. Declaration Exhibit 23,

Update on Catalog Registration; see also Exhibit 19 Copyright Office Circular 4, Fees. In

addition, Ms. Wolffs update admitted that absent this approval by the Copyright Office,

this method of registration would only provide protection for the compilation as a whole,

not the individual photographs within the compilation and that a separate application for

each image would be required to obtain protection for each image:

Copyright Office regulations only permit one claimant per application. Under theseregulations, each contributor and agency would have to file a deposit of two copies of thecatalog and a separate application per image (or group of images per claimant) for $30per application amounting to hundreds of applications per catalog.

Declaration Exhibit 23 at top of page 2(emphasis added).1

It appears that, according to the registrations, Plaintiff filed an initial registration for

a block of photographs and then updated it periodically with additional authors pursuant to

the Copyright Office regulations for registration of automated databases, 37 C.F.R.

202.3(b)(5). The objective apparently was not simply to register the catalog or database as

1 The article also describes an assignment of the copyright for registration purposes only and then havingthe stock photo agency assign the rights back to the photographer after registration. Neither the complaintnor the registrations contain the actual agreements between the photographers and the plaintiff, so it is notclear if this method was applied for the images involved in this case. If it was applied, it is possible thatplaintiff may not have standing to bring these claims unless there was return of the rights back to plaintiff.This issue is not raised in this motion, but if the complaint survives this motion, discovery will be necessaryto ascertain if plaintiff does have standing.

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a collective whole, but rather to make that single registration apply to each of the possibly

thousands of individual photographs contained within the collection so that the authors

would not have to register any works themselves or pay the Copyright Office the fees it

was due.

In most of the registrations at issue here, the authors are not listed. In all of the

registrations here, the titles of the works are not listed, nor are the works necessarily even

included in the deposit copies, as the deposit regulations require only portions of the

database to be deposited. See 37 C.F.R. 202.20(c)(2)(vii), (viii). There is no way for

anyone to link a particular author to a particular image or to know when a particular image

was first created or published.

The requirements of 17 U.S.C. 409 are clear and vital to the creation and

maintenance of an accurate and searchable record of copyright that interested parties -

including commercial interests and litigants - can use to ascertain whether a work has been

registered, who created it, and who controls it. It is also vital for those interested parties to

be able to ascertain when a work is claimed to have been first created and published.

The methodology adopted makes a mockery of the pre-registration requirement in

411 of the Act and thus fails to meet the statutory requirement in that regard as well.

STANDARD OF REVIEW

The standard for granting summary judgment is well established. Summary

judgment may not be granted unless the pleadings, depositions, answers to interrogatories,

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and admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law. Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of

establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970). [T]he movant must make a prima facie showing that the

standard for obtaining summary judgment has been satisfied. 11 MOORE'S FEDERAL

PRACTICE, 56.11[1] [a] (Matthew Bender 3d ed.). In moving for summary judgment

against a party who will bear the ultimate burden of proof at trial, the movant may satisfy

this burden by pointing to an absence of evidence to support an essential element of the

nonmoving party's claim. Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)(

citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190

(1996). Once that burden has been established, the burden then shifts to the non-moving

party to demonstrate specific facts showing that there is a genuine issue for trial.

Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The parties

may only carry their respective burdens by producing evidentiary proof in admissible form.

FED.R.CIV.P. 56(e). The underlying facts contained in affidavits, attached exhibits, and

depositions, must be viewed in the light most favorable to the non-moving party. U.S. v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

This is the standard even when the motion is made in lieu of answering the complaint. See.

E.g., Gray v. Garlok Seealing Technologies, LLC, 2006 WL 3680567

(W.D.N.Y.,2006).

ARGUMENT

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I. DEFENDANTS ARE ENTITELD TO SUMMARY JUDGMENT OVER

PLAINTIFF'S CLAIMS BECAUSE THE REGISTRATIONS UPON WHICH

PLAINTIFF RELIES DO NOT COMPLY WITH 17 U.S.C. 409 AND 411 AND

THEREFORE CANNOT SERVE AS VALID REGISTRATIONS OF THE

INDIVIDUAL IMAGES AT ISSUE

A. The Registrations Alleged In The Complaint Are Invalid On Their Face As to

Plaintiff

This is a case of straightforward statutory construction. The Copyright Act at 17

U.S.C. 411(a) mandates that no civil action for infringement of the copyright in any

United States work shall be instituted until preregistration or registration of the copyright

claim has been made in accordance with this title. The United States Supreme Court has

held that [ ] 411(a)'s registration requirement is a precondition to filing a claim that does

not restrict a federal court's subject-matter jurisdiction.Reed Elsevier, Inc. v. Muchnick

___ U.S.____, 130 S.Ct. 1237 U.S., (2010). However, this precondition is a requirement

that, if not met, subjects the claim to a motion for summary judgment. See, e.g.,

Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., 712 F.Supp.2d 84

(S.D.N.Y.,2010);

The Copyright Act also mandates that every registration application must identify,

inter alia, the claimant, the author or authors of the work, and the title. 17 U.S.C. 409(1),

(2), (6). Here, Plaintiff has not attached the full certificates of registration to its Complaint.

Instead, it provides a chart that alleges that each of the approximately 40 copyrights at issue

falls under one of several registration numbers. ( See Ex. A to Compl.) and then attaches

part of the registrations themselves. A review of the actual registrations, attached by

Defendants to the Declaration in Support of the Motion, reveals that none of the

registrations complies with Section 409 of the Act.

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More significantly, registrations secured in the manner these registration were

secured - naming only plaintiff or naming three random authors out of an unknown number

of others or listing only the names of the authors in a continuation sheet fail to comply

with the clearly enumerated registration requirements of the Copyright Act. 17 U.S.C.

409. For that reason alone, the Complaint must be dismissed.

B. The Registrations Procedures Followed Here Were The Result Of Private

Discussions Between The Copyright Office And PACAs Counsel and is Entitled to No

Deference

The registrations Plaintiff cites in its Complaint were each issued to Plaintiff as the

Copyright Claimant. (Declaration Exs. 2 - 17.)

According to the affidavit of Nancy Wolff, the lawyer for PACA, in 1995, Ms. Wolff and

other representatives of the trade association met with staff members of the United States

Copyright Office. (Declaration Ex. 20 2.) At that meeting, Ms. Wolff and outlined this

mass registration procedure. (Id. 4.)

In 2002, Ms. Wolff once again approached the Copyright Office about the

registration practices of her clients. (Ex. 20 6.) In return, Ms. Wolff received a letter from

Ms. Petruzzelli (Ex. 22) which outlined the latter's understanding of the pattern that stock

house registrations generally follow and provided the Copyright Office's interpretation of

that practice. Ms. Petruzzelli indicated that the Copyright Office interpreted the claims to

extend to individual photographic authorship only for those photographers identified by

name in the application. (Id.) So even under this liberal view of registration, the

registrations attached as Exhibit 9-17 are invalid as they name either no author (Exhibit 17)

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or only three authors (Exhibits 9-16). For those that name three authors, there is no way of

knowing if the images involved under those registrations involve the three named authors.

Later in the same letter, however, Ms. Petruzzelli appeared to contradict the limited

view expressed above - that the registration extends to individual works only for those

photographers named in the application - when she referred to two Copyright Office

guidelines that contemplated naming only three authors when a large number of authors

contribute to a single work. The first source Ms. Petruzzelli cited is the Compendium of

Copyright Office Practices, Compendium II(1984). The Copyright Office identifies this

now twenty-five year old document as a manual, intended primarily for Copyright Office

staff. ( See http://www.copyright.gov/compendium/) According to Ms. Petruzzelli, this

internal manual stated that the Copyright Office preferred that a registration list all

contributing authors, but that listing three authors and a reference to unnamed others was

considered acceptable in some instances. (Ex. 22.) The second source Ms. Petruzzelli cited

was Circular 62, Serials (see Ex. 18), a 2000 Circular that discussed registration

procedures for serial works. (Ex. 22.).

These copyright staff statements however, involve obtaining registration of the

database as a compilation, but in order for the effect of the registration to extend to the

individual photographs embodied in the database, the authors must be listed in space 2a of

the application. None of the registrations here list the authors in 2a; at most, some list them

in 2b.

The informal Copyright Office interpretation at issue is equivocal as it mentions

general guidelines and is not due the level of deference accorded official agency actions

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taken within the parameters of the agency's Congressional mandate. See United States v.

Mead Corp., 533 U.S. 218, 227-8 (2001); see also Chevron U.S.A., Inc. v. Natural Res.

Defense Council, Inc., 467 U.S. 837 (1984). The interpretation here was the result of an

informal, nonpublic discussion between a select group of industry insiders and

representatives of the Copyright Office.

Here, there are only the statements and procedures outlined by Ms. Wolff to the

members of the trade association, and a short letter from Ms. Pertuzzelli that never directly

addresses whether the works of unnamed individual photographers can be registered in this

manner. Accordingly, there is no record here that could persuade the Court that the

interpretation reflects a reasoned and appropriate exercise of the Copyright Office's

mandate. Moreover, even if a clear statement of the Copyright Office's position did exist,

and even if it supported Plaintiff's apparent view, it would still be due no deference because

granting registration of unnamed works of unnamed photographers in registrations that

otherwise also do not comport with Section 409 directly conflicts with the clear terms of

the statute. The [Copyright Office's] interpretation cannot trump the plain language of the

governing statute. See Boyds Collection, Ltd. v. Bearington Collection, Inc., 360 F. Supp.

2d 655, 662(M.D. Pa. 2005) (finding Copyright Office's interpretation of useful articles

vis a vis clothing on dolls conflicted with the plain meaning of the statutory definition of

useful articles);see also Christensen v. Harris County , 529 U.S. 576, 588 (2000) (no

deference owed to agency actions that conflict with the governing statute).

The statute in 17 U.S.C. 409(a)(2) requires the name and nationality or domicile

of the authoror authors of the work that is being registered. Similarly, 17 U.S.C.

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409(a)(6) requires the title of the work being registered. Nothing in the comments or the

legislative history indicates that these requirements can be side-stepped or waived by the

Copyright Office. To the contrary, the legislative history indicates that the registration

requirements were chosen, inter alia, in order to provide an accurate public record: the

various clauses of section 409, which specify the information to be included in an

application for copyright registration, are intended to give the Register of Copyrights

authority to elicit all of the information needed to examine the application and to make a

meaningful record of registration. H.R. Rep. No. 94-1476, at 155-56 (1976), reprinted in

1976 U.S.C.C.A.N. 5659, 5771-72 (emphasis added). Absent these vital pieces of

information, there is no record at all of the registration. A party ( e.g., a business planning

to use a work, or a defendant charged with infringing a work) cannot search the Copyright

Office's records and determine who actually controls a work, or indeed, whether an

individual has ever registered a copyright. The procedure employed here serves no purpose

other than to promote mass registration of works in a single application, depriving the

Copyright Office of the very modest but important fees it charges for group and individual

registrations, and undermining one of the very purposes of copyright registration.

C. Properly Developed And Implemented Rules For The Registration Of Large

Numbers Of Photographs Already Exist

With the passage of the 1976 Act, Congress explicitly granted the Copyright Office

authority to establish procedures for the group registration of copyrights by the same

author. See 17 U.S.C. 408.

The provision empowering the Register to allow a number of related works to be

registered together as a group represents a needed and important liberalization of the law

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now in effect. At present the requirement for separate registrations where related works or

parts of a work are published separately has created administrative problems and has

resulted in unnecessary burdens and expenses on authors and other copyright owners. In a

number of cases the technical necessity for separate applications and fees has caused

copyright owners to forego copyright altogether. Examples of cases where these

undesirable and unnecessary results could be avoided by allowing a single registration

include . . . a group of photographs by one photographer....

H.R. Rep. No. 94-1476, at 154, 1976 U.S.C.C.A.N. 5659, 5770 (emphasis added).

The Copyright Office acted on this mandate and, after a proper notice and comment

period, it issued formal rules to govern the registration of multiple works by the same

author under a single registration. See 43 Fed. Reg. 965, 966-67 (January 5, 1978) (later

codified as 37 C.F.R. 202.3). In 2001, the Copyright Office, following an additional

notice and comment period, announced a further liberalization of the group registration

procedures, and in particular the deposit requirements, specifically for collections of

published or unpublished photographs by a single photographer. See generally Group

Registration of Photographs, 66 Fed. Reg. 37142, 37142-50 (July 17, 2001) (later codified

at 37 C.F.R. 202.20(c)(2)(xx)). Specifically, the Copyright Office concluded pursuant to

this lengthy notice and comment proceeding that (1) group registrations of photographs

should be limited to photographs taken by the same individual author (id. at 37148) and

noted that such is supported by subsections 408(c)(2) and (3) of the Copyright Act and the

legislative history; and (2) that the deposit required to accompany the registration

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application should include a copy of each photograph and date of publication and that the

photocopies must clearly depic[t] the photograph (id. at 37146-47).

The industry practice at issue here is therefore not only an unauthorized evasion of

the statutory registration requirements listed in 17 U.S.C. 409, but it is also an evasion of

the clear rules promulgated by the Copyright Office specifically forphotographers

pursuant to the properly developed process that Congress explicitly authorized.. That

process preserves the statutory requirement that a registration include the names of the

claimant, the authors, dates of creation and publication; and the titles of the works in

question, while addressing the registration fee issue. Photographers can simply register

their works under their own names, and at minimal cost to them (the Copyright Office

currently charges $45 for a single group registration of up to 750 photographs (Ex. 19).

II. EVERY COURT BUT ONE THAT HAS EVALUATED THIS ISSUE HASINVALIDATED THIS REGISTRATION FORMAT AND THE COMPLAINTS

HAVE BEEN DISMISSED

Three cases involving this format of registration of digital images have been

decided, all of which invalidated the registration format and awarded summary judgment to

the defendants or dismissed the complaints.: Muench Photography, Inc. v. Houghton

Mifflin Harcourt Pub. Co., 712 F.Supp.2d 84 (S.D.N.Y.,2010); Bean v. Houghton Mifflin

Harcourt Publishing Co., 2010 WL 3168624 (D.Ariz.,2010); and Alaska Stock, LLC v.

Houghton Mifflin Harcourt Pub. Co. 2010 WL 3785720 (D.Alaska, 2010).

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Only one case has upheld this format of registration. Masterfile Corp. v. Gale, 2011

WL 4702862 (D. Utah 2011). In that case, however, the court did not reach the issue of

whether these registrations complied with Copyright Section 103(b) or 409 but instead

ruled that it declined to follow Muench and that because Masterfile owns the constituent

parts of the collection, the registration of the collection extends copyright protection to the

constituent parts. Id. It is respectfully submitted that because the plaintiff in that matter

relied only on 37 C.F.R. 202.3(10)(ii)(dealing with the registration of copyrights) and did

not focus the courts attention on the Copyright Act itself, that it is inapposite and should

not be followed. The court specifically stated that 37 C.F.R. 202.3(10)(ii) applies only to

cases of an individual photographer registering multiple images at once, and not to image

libraries; an argument not raised here or in the cases that follow. The court in that case also

did not analyze the missing elements of the copyright registrations relied upon by the

plaintiff as the defendants apparently did not rely on that argument before the court.

Movant will now discuss the three cases that it argues are directly on point on this issue

and which this court should follow.

A. Muench Photography, Inc. v. Houghton-Mifflin Harcourt Pub. Co.

In this case, the first case to deal with this issue and present a written opinion,

Plaintiff brought an action pursuant to 17 U.S.C. 501 et seq. (the Copyright Act)

against Defendants Houghton Mifflin Harcourt Publishing Company (HMH) and R.R.

Donnelly & Sons Company (Donnelly, and together with HMH, Defendants) alleging

that Defendants engaged in the unauthorized and impermissible use of Plaintiff's digital

images. Defendants moved to dismiss the Complaint for failure to state a cause of action

pursuant to Fed.R.Civ.P. 12(b)(6) arguing that the photographs at issue were not properly

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registered with the Copyright Office. Muench Photography, Inc. v. Houghton Mifflin

Harcourt Pub. Co., 712 F.Supp.2d 84, 86. The court converted the motion to one for

summary judgment pursuant to FRCP 56.

A non-party to the action, Corbis Corporation, registered several automated

databases of photographs, including the images at issue, which were taken (and therefore

authored) by plaintiff. Id. Corbis used the three named authors and X other authors

method used in this case contained in Exhibits 9-16. Id at page 87-88. The plaintiff had

relied on the Petruzzelli letter to justify its method of registration. In stating that it would

not rely on the Petruzzelli letter or afford it deference the court stated:

the Court will not defer to the Copyright Office's interpretations of the Copyright Act as setforth in Petruzzelli Letter-even though the Petruzzelli Letter relies on provisions ofCompendium II-because the interpretations conflict with a plain reading of17 U.S.C. 409. See State of N.Y. v. Shalala, No. 93 Civ. 1330, 1996 WL 87240, at *9 (S.D.N.Y. Feb.29, 1996) (Generally, even where an agency's interpretation is inconsistent with its pastpolicy, the current interpretation is entitled to the usual deference as long as it isreasonable and not contrary to the plain language of the statute. (citing Himes v. Shalala,999 F.2d 684, 690-91 (2d Cir.1993))) (emphasis added); compare 17 U.S.C. 409 (Theapplication for copyright registration ... shall include ... (2) in the case of a work other thanan anonymous or pseudonymous work, the name and nationality or domicile of the authoror authors ....) with Petruzzelli Letter at 2 (I point out that Compendium II, 615.07(b) (3)does further state that the Office prefers the names of all authors by use of continuationsheets. However, the Office has consistently interpreted this preference as just that-apreference but not a requirement ....).

Id. at pages 91-92.

Finding that the terms of the statute to be unambiguous, judicial inquiry is complete, the

court granted summary judgment due to the deficiencies in the registrations. Id. at 95

holding:

Accordingly, because the Copyright Act is clear on its face, i.e., a copyright registrationmust contain certain pieces of information including the author's name, the registrations atissue here cover only the database as a whole (the compilation) but do not cover Plaintiff'sindividual contributions.

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Muench, is directly on point and identical in its relevant facts to this case. In fact, it so

directly on point that much of the argument raised by movant in Point I of this brief is

derived directly (with permission from Houghtons counsel) from the brief in Muench.

The plaintiffs in Muench then moved for reargument, supported by various

amicus curiae briefs, including ones filed by the government on behalf of the

Copyright Office and by Corbis Corporation. Muench Photography, Inc. v.

Houghton Mifflin Harcourt Pub. Co. 2010 WL 3958841 (SDNY 2010). The basis

for reargument was mainly that the court overlooked section 411(b) of the

Copyright Act which allows for correction of errors in registrations. The court

held however, that omission of the authors name, image title, and connection

between the two is not a mere inaccuracy; it is an entire failure to comply with the

requirements of section 409 [and that] plaintiff's reliance on section 411(b) therefore

cannot be a basis on which to vacate the Court's order. Id.

Recently, the plaintiff in Muench, added his name and some additional images to the

previously registered Corbis compilation database in an attempt to correct the

previously invalidated registrations and then filed an amended complaint. Just a few

days ago, the court again granted the defendants motion for summary judgment

finding that this form of registration also did not comport with the Copyright Act.

Muench Photography, Inc. v. Houghton Mifflin Harcourt Pub. Co., 09 cv 2669

(March 26, 2012)(appended as exhibit A to this memorandum). The court

reiterated that proper registration was a prerequisite to maintaining a copyright

infringement action and that a registration that fails to contain all of the

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requirements of section 409 is invalid and cannot be merely corrected by

supplementing it later on. Id. This decision also means that if any of these images

were previously contained on a validly filed Masterfile compilation registration,

that supplementing them by adding the authors names (as Masterfile did in

exhibits 2-8) is an invalid method of obtaining registration of the individual

images contained within the compilation.

B. Bean v. Houghton Mifflin Harcourt Publishing Co.

Plaintiff in Bean was a photographer who produced digital images. Corbis Corporation

was the licensing agent for Plaintiff. According to Plaintiff, between 2000 and 2009,

Corbis, as Plaintiff's licensing agent, sold Defendant limited licenses for use of 150 of

Plaintiff's photographs. Plaintiff alleged that Defendant willfully exceeded the

permitted uses under the terms of the licenses granted by Corbis and filed suit alleging

that Defendant infringed his copyrights in violation of 17 U.S.C. 501, et seq.

Bean v. Houghton Mifflin Harcourt Publishing Co., 2010 WL 3168624

(D.Ariz.,2010)

Once again Corbis had used the three authors plus X additional authors method.

The court granted summary judgment in favor of the defendants because this method did

not comply with Section 409 of the Copyright Act. Id. at page 4. The court found that

because the registration contained only one title and only some authors names, it failed to

comply with the clear language of the Act. Id. at page 4. The court even refused to allow

Corbis to file an amicus curiae brief in the case because it had read the amicus brief Corbis

filed in the Muench reargument case and found that consideration of Corbis's proposed

amicus curiae brief in the present case will not aid the Court's decision. Id. at page 5. Bean

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is presently on appeal to the Ninth Circuit and its appeal has been stayed pending the Ninth

Circuits decision in Alaska Stock, discussed next.

C. Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co

In this case, the plaintiff was stock photo agency who used the registration method

used by plaintiff herein in Exhibits 9-16, (three authors plus X additional without listing

any additional authors). Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co. 2010

WL 3785720 at page 1 (D.Alaska, 2010). The court found the following defects in the

registration:

The registrations do not discloseand with what is currently before the court, it isnot knownwhich individual photograph was authored by a particular photographer,named or unnamed. The registrations also do not list a title for any of the individualphotographs contained in any of the compilations. Finally, although the copy of theregistrations that are in the public catalog do not state how plaintiff obtained ownership ofthe copyrights to the individual photographs, the Certificate of Registrations indicate that itwas by means of a transfer agreement.

Id. at page 1. Of course, these problems are identical to the ones in the registrations relied

upon by the plaintiff in this present case: no or incomplete authors named; no titles to the

photos; and no way to determine which photograph goes with which author.

Once again, the court held that this method may provide a valid copyright

registration for the entire compilation itself as a whole, but provides no protection or

registration for the individual images contained within the compilation. Id. at page 4.

Alaska Stock has appealed this ruling to the Ninth Circuit. The matter has been

fully briefed and has already been orally argued.

III. SECTION 103 OF THE COPYRIGHT ACT SPECIFICALLY STATES THAT

REGISTRATION OF A COMPILATION DOES NOT PROVIDE REGISTRATION

TO THE INDIVUDAL WORKS CONTAINED IN THE COMPILATION

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The procedure used by plaintiff herein also ignored the limitations on registration

imposed by Section 103 of the Copyright Act. Compilations can be registered by the author

of the compilation under Section 103(a) of the Copyright Act. That statute expressly

provides that compilations are proper, lawful subject matter of copyright[.] 17 U.S.C.

103(a). However, Section 103(b) unequivocally and specifically provides that [t]he

copyright in a compilation ... extends only to the material contributed by the author of such

work, as distinguished from the preexisting material employed in the work, and does not

imply any exclusive right in the preexisting material. Id. 103(b). Section 103(b) is

neither unclear nor ambiguous.

All of the registrations herein describe themselves as and are clearly compilations.

Section 103(b) cannot be amended by regulation or informal opinion(s) or advice to

claimants by the Copyright Office. Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub.

Co. 2010 WL 3785720 at page 5 (D.Alaska, 2010)( what plaintiff is arguing here seems to

be the antithesis of what Section 103(b) states as controlling copyright law).

The court must grant summary judgment to the defendants on this basis alone as the

Copyright Act is clear and unambiguous on this issue.

CONCLUSION

Because the registrations governing the images at issue herein do not comply with

sections 103, 409 and 411 of the Copyright Act, summary judgment must be granted to

defendants along with such other and further relief as the court deems just and proper.

Dated: March 29, 2012

Respectfully submitted,

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BRENT H. [email protected] LAW GROUP

95 North Citrus AvenueHollywood CA 90038Phone: 323 464 7400Fax: 323 464 7410

OSCAR MICHELEN (OM 5199)[email protected] Old Country RoadSuite 2 SouthMineola NY 11501Phone: 516-741-3223

Fax: 516-741-3223(Motion to be admitted pro hac vice pending)

Attorneys for DefendantsCHAGA INTERNATIONALSTEVE GOULD and MICHAELTIDD
mailto:[email protected]:[email protected]:[email protected]:[email protected]

Masterfile vs. Chaga: Memorandum of Law in Support for Summary Judgment as to Liability

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Transcript of Masterfile vs. Chaga: Memorandum of Law in Support for Summary Judgment as to Liability